Exhibit 10.17
OPERATING AGREEMENT
OF
ACADIAN HOMECARE, L.L.C.
This Operating Agreement is entered into and is effective as of the 1st
day of April, 2004 (the EFFECTIVE DATE), by and among the undersigned Members
who agree as set forth herein regarding the operations of Acadian HomeCare,
L.L.C., a Limited Liability Company, organized under and existing pursuant to
the laws of the State of Louisiana for the purposes of establishing a
cooperative endeavor between the parties:
ARTICLE I
DEFINITIONS
1.1 DEFINED TERMS
As used in this Agreement, defined terms have the meanings hereinafter
set forth:
(a) "Act" means the Louisiana Limited Liability Company Law,
Louisiana Revised Statutes 12:1301 et seq., and any successor
statute as amended.
(b) "Affiliate" means (i) any person directly or indirectly
controlling, controlled by or under common control with a
Member; (ii) any person owning or controlling 10% or more of
the outstanding voting securities or membership interest of a
Member; (iii) any officer, director, commissioner, member,
manager or other partner of a Member; and (iv) if a Member is
an officer, director, commissioner, joint venturer, member,
manager or partner, any business or entity for which the
Member acts in any such capacity.
(c) "Agreement" or "Operating Agreement" means this Operating
Agreement as originally executed and as amended from time to
time.
(d) "Articles" means the Articles of Organization of Acadian
HomeCare, L.L.C., as filed with the Secretary of State of
Louisiana, as the same may be amended from time to time.
(e) "Calendar Quarter" means the three month periods ending on
March 31st, June 30th, September 30th, and December 31st of
each year.
(f) "Capital Account" means a Capital Account maintained in
accordance with the rules contained in of the Regulations.
(g) "Capital Contribution" means any contribution to the capital
of the Company in cash, property or future services by a
Member whenever made.
(h) "Closing" means the Effective Date set forth above.
(i) "Code" means the Internal Revenue Code of 1986, as amended.
(j) "Company" means Acadian HomeCare, L.L.C., a Limited Liability
Company organized under and existing pursuant to the laws of
the State of Louisiana.
(k) "Distributive Shares" means the share of distributed revenues
from the Company due to each Member under the Membership
Interests applicable to such distribution.
(l) "Fiscal Year" means the Company's fiscal year, which shall be
the calendar year.
(m) "Majority Vote" or "Votes" means given to these terms in
Section 4.15.
(n) "Member" means any person executing this Agreement as a Member
or hereafter admitted to the Company as a Member as provided
in this Agreement, but does not include any person who has
ceased to be a Member in the Company.
(o) "Membership Interest" or "Interest" means a Member's interest
in the Company in which the Member shares in the income,
gains, expenses, profits, losses, deductions and credits of
the Company, which Interest is expressed as the percentage of
the Member's holdings of Units in the Company in proportion to
the total issued and outstanding Units of the Company.
(p) "Net Profits" and "Net Losses" means the Company's taxable
income or loss determined in accordance with the Code for each
of its Fiscal Years.
(q) "Net Revenues" means total charges of the Company for services
provided less contractual adjustments and allowances for bad
debt.
(r) "Officer" means one or more individuals appointed by the
Members to whom the Members delegate specified
responsibilities. The Members may, but shall not be required
to, amend this Agreement to create such offices as they deem
appropriate, including, but not limited to, President, Vice
Presidents, Secretary and Treasurer. The Officers shall have
such duties as are assigned to them by the Members from time
to time, which duties shall be memorialized by written
amendment to this Operating Agreement. All Officers shall
serve at the pleasure of the Members and the Members by
Majority Vote may remove any Officer from office without cause
and any Officer may resign at any time.
(s) "Person" means any individual, corporation, partnership,
limited liability company or any other entity eligible to be a
Member under the Act.
(t) "Properties" means all of the Company's interests in any
movable or immovable properties, contracts or other assets
owned by the Company.
(u) "Service Area" means Acadia, ▇▇▇▇▇, Assumption, Avoyelles,
Cameron, East Baton Rouge, ▇▇▇▇▇▇▇▇▇▇ Iberia, Iberville,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Lafayette, Pointe Coupee, Rapides St. ▇▇▇▇,
St. ▇▇▇▇▇▇, St. ▇▇▇▇▇▇, Vermilion, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and West
Baton Rouge Parishes in the State of Louisiana.
(v) "Transferor Member" means any Member who sells or transfers,
or offers to sell or transfer, or attempts to sell or transfer
his Units in the Company to another Person; or any Member who
is subject to a voluntary or involuntary withdrawal.
(w) "Treasury Regulations" or "Regulations" means the federal
income tax regulations, including temporary regulations,
promulgated under the Code, as such regulations may be amended
from time to time (including corresponding provisions of
succeeding regulations).
(x) "Units" means an interest in the Company acquired by a Member.
There shall be two classes of Units, each of which shall have
voting rights equal to one vote per Unit. As appropriate in
the context, the term Units as used herein shall refer to
either or both classes of Units.
(1) Class A Units may be issued to certain Members in
exchange for capital contributions to the Company.
Class A Units shall represent an equity interest in
the Company and shall represent a fully participating
interest in the Company's management and Net Profits
as hereinafter set forth. The maximum authorized
number of Class A Units of the Company is ten million
(10,000,000).
(2) Class B Units may be issued to certain Members who
have made capital contributions to the Company and
who participate in management of the Company. Class B
Units shall represent an interest participating in
the Net Profits, a limited equity interest and
limited voting interest in the Company with respect
to its operation of the branch office doing business
as St. ▇▇▇▇▇▇ HomeCare in accordance with the terms
hereinafter set forth. The maximum authorized number
of Class B Units of the Company is one (1).
(3) Class C Units may be issued to certain Members who
have made capital contributions to the Company and
who participate in management of the Company. Class C
Units shall represent an interest participating in
the Net Profits, a limited equity interest and
limited voting interest in the Company with respect
to its operation of the branch office doing business
as ▇▇▇▇▇▇ HomeCare in accordance with the terms
hereinafter set forth. The maximum authorized number
of Class C Units of the Company is one (1).
(4) Class D Units may be issued to certain Members who
have made capital
contributions to the Company and who participate in
management of the Company. Class D Units shall
represent an interest participating in the Net
Profits, a limited equity interest and limited voting
interest in the Company with respect to its operation
of the branch office doing business as Acadia-St.
▇▇▇▇▇▇ HomeCare in accordance with the terms
hereinafter set forth. The maximum authorized number
of Class D Units of the Company is one (1).
(5) Class E Units may be issued to certain Members who
have made capital contributions to the Company and
who participate in management of the Company. Class E
Units shall represent an interest participating in
the Net Profits, a limited equity interest and
limited voting interest in the Company with respect
to its operation of the branch office doing business
as Franklin HomeCare in accordance with the terms
hereinafter set forth. The maximum authorized number
of Class E Units of the Company is one (1).
ARTICLE 2
ORGANIZATION
2.1 INTENT
This Agreement constitutes the Operating Agreement of the Company, as
referred to in the Company's Articles and the Act.
2.2 FORMATION
The Company was been formed by its Members as a Louisiana limited
liability company by the filing of Articles pursuant to the Act.
2.3 PURPOSES
(a) The Company is restructuring its arrangements with certain
hospitals ("Hospitals") which are parties to continuing
cooperative endeavors to operate a Medicare certified home
health agency within the Service Area in the State of
Louisiana, and otherwise engaging in any lawful activity for
which limited liability companies may be formed under the laws
of the State of Louisiana as may be approved by the Members.
In furtherance thereof, the Company may exercise all powers
necessary to or reasonably connected with the Company's
business which may be legally exercised by limited liability
companies under the Act, and may engage in all activities
necessary, customary, convenient, or incident to any of the
foregoing.
(b) The parties acknowledge that Louisiana Health Care Group, LLC
owns and
operates several home health agencies in south-central
Louisiana, including agency offices located in Abbeville,
Alexandria, Baton Rouge, Bunkie, Clinton, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
Ferriday, Franklin, Jennings, Lafayette, Lake ▇▇▇▇▇▇▇, New
Iberia, Oakdale, Opelousas, Palmetto, Ville Platte, and Welsh
whose service areas may overlap with Company's Service Area.
The parties further acknowledge that the Company's home health
agency's authorized regulatory service area is that area
within a fifty (50) statute mile radius of Lafayette,
Louisiana, some of which are not subject to cooperative
endeavors with hospitals. Therefore, the parties agree that
the Company shall provide home health care services to
patients in accordance with the following criteria:
Unless otherwise requested by the patient or the patient's
attending physician, to ensure continuity of care and to
further the healthcare mission of the Company and its hospital
members ("Hospitals"), the Company shall admit any patient for
home health services who is referred by a Hospital following
Hospital's compliance with all regulatory procedures contained
in Section 2.3 (b)(e) to the branch office in which a Hospital
has a participation interest.
(c) The parties agree that the foregoing limitations are not in
the nature of a non-competition agreement, but rather are
voluntary, self-imposed restrictions on operations of the
Company to protect other business interests of the Company,
the Members and their Affiliates, in the absence of which
Company would not have admitted any Members.
(d) The parties further agree that these restrictions on the
Company's operations may only be modified or rescinded upon
the Majority Vote of the Members of the Company.
(e) The parties acknowledge each Hospital is limited by federal
law when making referrals to a home health enterprise in which
it has an investment interest. Social Security Act Section
1861(ee)(2)(D) requires that the Hospital offer potential home
health patients a choice of any qualified provider that
services the area of the patient's residence. The proposed
regulations implementing this provision require that the
Hospital furnish each patient a list of available home health
agencies from which to choose. (See 42 CFR 482.55 (b) (7) as
proposed in 62 Federal Register 66726 (Dec. 19, 1997).
Moreover, Social Security Act Section 1861(ee)(2)(H) and
Section 1866 (a)(1)(S) require a hospital to disclose to
patients and to the federal Centers for Medicare and Medicaid
Services the nature of any financial interest it may have in a
home health enterprise. Each Hospital shall ensure compliance
with all current and future applicable requirements regarding
its role in the patient's selection of a home care provider
prior to referring any patient to the Company.
(f) In keeping with the Hospitals' obligations to provide health
care services to residents of their respective service areas,
Company agrees to continue to provide home health services
within the Service Area so long as this Agreement is in
effect. Home health services provided by Company shall include
substantially the full range of clinical services currently
provided by the Company's home health agency. Company further
agrees that, to assure quality of services provided to the
residents of the Service Area, it will establish and maintain
accreditation with the Joint Commission on Accreditation of
Healthcare Organizations (or its successors) for so long as it
provides home health care services to residents of the Service
Area. The foregoing obligations to provide home health
services or to accept patients for admission does not include
an obligation to provide services to patients who do not meet
eligibility criteria for home health services established by
their payor source.
(g) The Members agree that the following branch offices shall
continue to provide home health services in the following
areas:
St. ▇▇▇▇▇▇ HomeCare shall provide home health services within
St. Landry Parish, excepting the areas of the Parish which are
encompassed by: (i) the Acadia-St. ▇▇▇▇▇▇ Hospital Service
District, and (ii) U.S. Postal Service Zip Code 70535 in the
State of Louisiana;
▇▇▇▇▇▇ HomeCare shall provide home health services within
Vermilion Parish, excepting the areas of the Parish which are
encompassed by the Vermilion Parish Hospital Service District
No. 2;
Acadia-St. ▇▇▇▇▇▇ HomeCare shall provide home health services
within St. ▇▇▇▇▇▇ and Acadia Parishes, within the areas which
are encompassed by the Acadia-St. ▇▇▇▇▇▇ Hospital Service
District boundaries;
Franklin HomeCare shall provide home health services within
St. ▇▇▇▇ ▇▇▇▇▇▇, within the areas which are encompassed by the
St. ▇▇▇▇ ▇▇▇▇▇▇ Hospital Service District No. 2 boundaries.
The Lafayette office of Acadian HomeCare shall provide home
health services within its regulatory authorized service area
in areas not otherwise covered by other branch offices of the
Company.
(h) Notwithstanding the foregoing, the obligations contained
herein are not intended to induce the referral of patients,
items or services and the Parties acknowledge that there is no
requirement that any Hospital refer patients to Company,
except as may be consistent with the wishes of the patient and
with law.
2.4 REGISTERED OFFICE AND AGENT
The Company shall maintain a registered office and a registered agent
in the State of Louisiana, which office and agent may be changed by the
Members.
2.5 OTHER OFFICES
In addition to its registered office in Louisiana, the Company may have
other offices and places of business at such places, both within and
without the State of Louisiana, as the Members may from time to time
determine.
2.6 OPERATING AGREEMENT
The affairs of the Company shall be governed by the Act, its Articles
and this Operating Agreement. There shall be only one Operating
Agreement governing the affairs of the Company and the relationships of
the Members to one another as such relate to the business of the
Company. Any oral or written agreement between or among the Members
relating to the Company and the matters governed by this Operating
Agreement shall be of no effect whatsoever unless and until the Members
agree by Majority Vote (or, if applicable, by such higher vote) to
incorporate said agreement into this Operating Agreement.
ARTICLE 3
MEMBERS
3.1 MEMBERS
The Members of the Company shall be those Persons who have joined in
the execution of this Agreement or an appropriate addendum thereof, and
who have been approved for membership by the Majority Vote of the
Members. The Members further agree that allocations of classes of units
to such newly admitted Members shall not affect any other Member's
equity or voting interests as set forth herein.
3.2 EXECUTION OF THIS AGREEMENT
The admission of an additional Member shall not become effective until
the Person has executed this Agreement, or an appropriate supplement
hereto, pursuant to which the new Member agrees to be bound by, and
subject to, all of the terms and provisions hereof and restrictions
herein.
3.3 MEMBERS HAVE NO EXCLUSIVE DUTY TO COMPANY
(a) No Member shall be required to perform services for the
Company solely by virtue of being a Member. Unless approved by
the Members, no Member shall perform services for the Company
or be entitled to compensation for services performed for the
Company.
(b) Except as otherwise expressly stated herein, no Member shall
be required to participate in the Company as such Member's
sole and exclusive function and any
Member shall be entitled to and may have other business
interests and may engage in other activities in addition to
those relating to the Company and in addition to those
permitted Related Party Transactions as described in Section
4.23. No Member shall have a business interest or engage in
activities which are in direct competition with the Company's
provision of home health care services without the expressed
written approval of the other Members pursuant to a Majority
Vote. Neither the Company nor any Member shall have any right,
by virtue of this Operating Agreement, to share or participate
in such other investments or activities of the Member or to
the income or proceeds derived therefrom, and no member shall
have any liability or responsibility for any losses sustained
by a Member in such other investments or activities. The
Member shall incur no liability to the Company or to any of
the Members as a result of engaging in any other business or
venture permitted by this Agreement.
ARTICLE 4
MANAGEMENT
4.1 MANAGERS
(a) The business of the Company shall be managed by a Manager, who
may, but need not, be Member, and who shall be a mandatary of
the Company for all matters in the ordinary course of its
business. LHC GROUP, LLC shall be the initial Manager of the
Company, and appears herein to accept said appointment. To the
extent authorized by this Agreement, the Manager shall have
full, exclusive and complete discretion, control, power and
authority in the management of the Company's affairs. The
Manager shall have full power and authority to undertake any
activity described in this Article and to execute and deliver
on behalf of the Company such documents or instruments which
the Manager deems appropriate in the conduct of the Company's
business. No person, firm or corporation dealing with the
Company shall be required to inquire into the authority of the
Manager to take any action or make any decision.
(b) The Manager shall be required to devote to the Company's
affairs only such part of its time as is reasonably required
to conduct the operations contemplated under this Agreement
and shall be free to engage in any other business for its own
account and/or for the account of others, however, no such
business interests and activities may be in direct competition
with the Company. Neither the Company nor any of the Members
shall have any rights by virtue of this Agreement in any
independent business ventures of the Manager. The Manager
shall not take or recommend any action which may or will
affect the Company's home health agency licensure or Medicare
certification, or which violates any law or regulation.
(c) Subject to the ultimate authority of the Members of the
Company, the day to day management of each branch office
within the Service Area shall be conducted by
the Manager under the oversight and direction of a "Management
Committee." No Management Committee shall take or recommend
any action which may or will affect the Company's home health
agency licensure or Medicare certification, or which violates
any law or regulation. Each committee shall have one
representative appointed by the Manager holding 66 votes, and
one representative appointed by the Hospital participating in
the branch office holding 33 votes. The votes granted to the
representatives are for purposes of the Management Committee
only and do not constitute "Votes" as same are defined in
Section 4.15. Representatives on the Management Committee may
meet and take action in accordance with the provisions of
Sections 4.17 and 4.18 of this Agreement.
4.2 POWERS OF MANAGER.
The Manager shall have all necessary powers to carry out the purposes
and conduct the business of the Company including, without limitation,
excepting any specific limitations contained in this Agreement or in
applicable law, the authority, right and power on behalf of the Company
to:
(a) To negotiate all such contracts, agreements, and other
undertakings without binding the Company until same are
approved by Majority Vote of the Members;
(b) Hold, manage and defend the assets of the Company;
(c) Open, maintain and close bank accounts, designate and change
signatories on such accounts and draw checks and other orders
for the payment of monies;
(d) Lease, sell, convey, assign, trade, exchange, quitclaim,
surrender, release, abandon or otherwise dispose of any
movable assets or interest therein or payable therefrom not to
exceed $25,000 without any further act or vote or grant of
authority by any Members and in connection therewith make any
such distributions as the Manager may deem appropriate from
the proceeds of such sale to the Members. Any such transaction
exceeding $25,000 shall require the prior approval of 75% of
the Votes;
(e) To collect and deposit all Company receipts and to disburse
all Company funds in payment of all ordinary and necessary
expenses;
(f) ▇▇▇ and be sued, complain and defend in the name of and on
behalf of the Company;
(g) Execute and deliver all negotiable instruments, checks, drafts
or other orders for the receipt or payment of funds belonging
to the Company;
(h) Execute powers of attorney, consents, waivers and such other
documents as may be necessary or appropriate before any court,
administrative board or agency of any governmental authority
affecting Company assets;
(i) Purchase insurance, at the Company's expense, to protect
Company assets against loss and to protect the Manager against
liability to third parties arising out of the Company's
activities, provided that any such insurance shall name each
Member, individually as an additional named insured;
(j) Prepare and file all returns for the Company and make all
elections for the Company with respect to federal and state
income or other taxes;
(k) Recommend employment of such agents, employees, accountants,
lawyers, clerical help and other assistance and services
subject to approval by Majority Vote;
(l) Grant and perfect security interests in the Company's accounts
solely for the purposes of obtaining operational financing as
provided in Section 4.23 and 4.29; and
(m) Execute and deliver such other documents and perform such
other acts as the Manager in his sole discretion may determine
to be necessary or appropriate to carry out the purposes of
the Company
The foregoing powers of the Manager are subject to the limitation that
no specific action may be taken by the Manager over the prior objection
to such specific action by a Member unless and until such specific
action is approved by Majority Vote.
4.3 CERTAIN LIMITATIONS ON AUTHORITY OF MANAGER.
All authority not specifically delegated to the Manager hereinbefore
shall be reserved to the Members. All decisions of the Members shall be
determined by Majority Vote; except that, the following matters shall
require the approval of a two-thirds (2/3's) Vote of the Members:
(a) To dissolve, liquidate or wind-up the business of the Company;
(b) To sell, exchange, lease, mortgage, pledge, encumber, or grant
a security interest in, or otherwise transfer assets, other
than inventory in the ordinary course of business, and other
than granting and perfecting security interests in the
Company's accounts as provided in 4.2(l) above;
(c) To merge or consolidate the Company with or into any other
entity;
(d) Except as provided in Section 4.29 in relation to operational
financing, to incur indebtedness in excess of $25,000 in any
one transaction, or in excess of $100,000 in the aggregate,
which aggregate amount shall include any outstanding
operational financing amounts;
(e) To alienate, lease or encumber any immovable property
belonging to the Company;
(f) Confess to judgment against the Company;
(g) To admit new members;
(h) To file voluntary bankruptcy proceedings;
(i) To amend the Articles or this Agreement; and
(j) To make distributions to a Member or Members.
4.4 COMPENSATION AND REIMBURSEMENT OF MANAGER.
Manager shall not receive any compensation for its services rendered in
its legal capacity as Manager of the limited liability company unless
and until same be established upon a Majority Vote. Manager shall be
reimbursed on a monthly basis for all direct costs and expenses
reasonably incurred on behalf of the Company. All compensation to
Manager for services rendered and all direct costs and expenses
incurred by Manager on behalf of the Company shall not exceed that
which is reasonable and proper for comparable services performed in a
like manner in accordance with industry standards, and shall to the
extent applicable, meet the criteria of any applicable safe harbor
regulation.
4.5 LIABILITY AND INDEMNIFICATION OF MANAGER.
In addition to any other provision contained herein conferring similar
rights, the Manager shall not be liable, responsible, or accountable in
damages or otherwise to the Company or to any Member for any action
taken or any failure to act on behalf of the Company within the scope
of the authority conferred on the Manager by this Agreement or by law,
unless the action was taken or omission was made fraudulently or in bad
faith or unless the action or omission constituted gross negligence, or
conduct demonstrating a greater disregard of the duty of care than
gross negligence, including but not limited to, intentional tortious
conduct or intentional breach of Manager's duty of loyalty.
4.6 POWER OF ATTORNEY.
Each Member hereby constitutes and appoints the Manager as the Member's
true and lawful attorney and agent with full power and authority in the
Member's name, place, and stead solely for the purpose of executing,
swearing to, acknowledging, delivering, filing, and recording in the
appropriate public offices:
(a) All such certificates that are necessary or appropriate to (1)
qualify or continue the Company as a limited liability company
or (2) to conduct the business of the Company in the
jurisdictions in which the Company may conduct business or own
or lease property; and
(b) One or more fictitious or trade name certificates
The power of attorney granted herein shall be considered to be coupled
with an interest, and, to the extent permitted by applicable law, shall
survive the death, interdiction, withdrawal, resignation, retirement,
expulsion, bankruptcy, dissolution, or termination of existence of a
Member or interest holder. It shall also survive the Transfer of an
Interest, except that if the Transferee is admitted as a Member, this
power of attorney shall survive the delivery of the assignment for the
sole purpose of enabling the Manager, as attorney in fact, to execute,
acknowledge, and file any documents needed to effectuate the
substitution.
4.7 RESIGNATION OR WITHDRAWAL OF MANAGER.
The Manager may resign upon giving written notice to the Company at
least thirty (30) days in advance. Upon the resignation or withdrawal
of the Manager, a new Manager may be elected by an unanimous vote of
the Members.
4.8 OTHER AGENTS
The Members, on Majority vote, may appoint other managers, agents, or
attorneys-in-fact as needed from time to time, whose authority to act
for the Company shall be stated in the written act or instrument
pursuant to which said agent or attorney in fact is appointed. Unless
expressly authorized to do so by the Members, no attorney-in-fact,
employee or other agent of the Company shall have any power or
authority to bind or obligate the Company in any way, or to pledge its
credit.
4.9 REMOVAL OF MANAGER.
The Members, at any time and with or without cause, may remove a
Manager and elect a new Manager, only upon unanimous Vote of the
Members .
4.10 LIMITATION ON AUTHORITY OF MEMBERS.
No Member is an agent of the Company solely by virtue of being a
Member, and no Member has authority to act for the Company solely by
virtue of being a Member. This Section 4.10 supersedes any authority
granted to the Members by the Act. Any Member who takes any action or
binds the Company in violation of this Operating Agreement shall be
solely responsible for any loss and expense incurred by the Company as
a result of the unauthorized action and shall indemnify and hold the
Company harmless with respect to the loss or expense.
4.11 BUSINESS JUDGMENT.
The Managers and the Members shall be entitled to rely on information,
opinions, reports or statements, including but not limited to financial
statements or other financial data prepared or presented by: (i) any
one or more Members, Officers or employees of the Company whom the
Member reasonably believes to be reliable and competent in the matter
presented, (ii) legal counsel, public accountants, or other persons as
to matters the Member reasonably believes are within the person's
professional or expert competence, or (iii) a committee of Members on
which he or she does not vote if the Member reasonably believes the
committee merits confidence.
4.12 MEETINGS OF THE MEMBERS
Subject to the notice requirement of Section 4.13, meetings of the
Members may be called at any time by a Manager, or by Members holding
in the aggregate thirty percent (30%) of the Units. If the meeting is
called by less than a majority in interest of the Members, it shall be
held at the registered office of the Company, unless all Members agree
to an alternate location. Subject to the foregoing, meetings of the
Members may be held at the office of the Company, or at such other
place, either within or without the State of Louisiana, at a time and
date as designed in the notice. Failure to hold an annual meeting shall
not affect or vitiate the Company's existence.
4.13 NOTICE OF MEETINGS
Written notice of the time and place of a meeting of Members shall be
given by the Person calling the meeting to all Members at least two (2)
days and not more than sixty (60) days prior to the date fixed for the
meeting. Notice of any Members' meeting may be waived in writing by any
Member at any time. Attendance at any meeting by a Member shall be
deemed a waiver of notice of such meeting unless such attendance is
solely for the purpose of objecting to the legality of the meeting on
grounds of inadequate or improper notice.
4.14 QUORUM
Except as may be otherwise required by the Act, the Articles or this
Agreement, the presence in person or by proxy of persons holding
fifty-one percent (51%) of the Votes shall be necessary to constitute a
quorum at any meeting of the Members.
4.15 VOTING
At any meeting of the Members, every Member having the right to vote
shall be entitled to vote in person, or by proxy. There shall be one
vote allotted for each Unit held by the Members (the "Votes").
Fractional Units shall not be entitled to vote except in the event of a
tie vote. Except for actions requiring the unanimous or a supermajority
consent or approval of the Members as required by the Act, the
Articles, or this Agreement, a fifty-
one percent (51%) majority of the Votes present and voting ("Majority
Vote") shall decide any matter brought before the Members. On demand of
any Member, the vote on any question shall be by written ballot.
4.16 PROXIES
At any meeting of the Members, every Member shall be entitled to vote
in person or by proxy appointed by an instrument in writing subscribed
by such Member and bearing a date not more than eleven months prior to
the meeting, unless the instrument provides for a longer period. Any
Member may issue an irrevocable proxy to any other Member. A copy of
such instrument shall be filed prior to or at the meeting. The person
granted a Member's proxy has full authority to act as and on behalf of
the Member granting such authority, with all powers and rights incident
thereto, unless otherwise limited in such instrument.
4.17 WRITTEN CONSENT
Any action may be taken without a meeting of the Members if a consent
in writing, setting forth the action so taken, shall be signed by those
Members having sufficient votes to authorize the action. Such consent
shall have the same force and effect as a vote of the Members. A
photostatic, email, facsimile transmission, or similar reproduction of
a writing, signed by a Member, shall be regarded as an original for all
purposes. A copy of the written consent shall be distributed to each
non-consenting Member within fifteen (15) days of the date of such
consent. The failure to distribute such copies shall not vitiate or
effect the consent in any manner.
4.18 TELEPHONE CONFERENCE CALLS; EMAIL
Members may participate in meetings by means of a telephone conference
call or similar communication equipment provided that all Persons
participating in the meeting can hear and communicate with each other.
Participation in such a meeting shall constitute presence at the
meeting, except where a Person participates in the meeting for the
express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened. The Manager
may poll the Members by telephone and the results of such poll may
constitute action by the Members so long as no Member who has been
polled objects to such action prior to its adoption, and provided that
any action taken by poll is properly reduced to writing and a copy of
the same provided to the Members within ten (10) days following the
poll. Members may take action by way of serial email transmissions so
long as each Member contemporaneously receives a copy of the emails
proposing and discussing such action and no Member objects to such
action prior to its adoption.
4.19 TAX RETURNS AND ELECTIONS
The Manager shall cause the preparation and timely filing of the
Company's tax returns,
shall make such tax elections and determinations as appear to be
appropriate, and shall timely file all other writings required by any
governmental authority having jurisdiction to require such filing. Upon
the transfer of all of the Member's interest in the Company or upon the
death of a Member, or upon the distribution of any property of the
Company to a Member, the Company may (but shall not be required to)
file an election in accordance with the applicable Treasury Regulations
to cause the basis of such property to be adjusted for federal income
tax purposes as provided by the Code.
4.20 REIMBURSEMENT OF COSTS AND EXPENSES
Any Member acting for and on behalf of the Company shall be entitled to
reimbursement for all reasonable expenses, costs and other liabilities
reasonably incurred on behalf of the Company, except to the extent that
such expenses, costs and other liabilities are incurred in connection
with services that the Member has agreed to perform for the Company as
a contribution to its capital.
4.21 LIMITATION OF LIABILITY
Except as otherwise provided by the laws of the State of Louisiana, the
personal liability of each Member, if any, shall be limited to his
capital contribution to the Company as set forth herein. No Member has
guaranteed or shall have any obligation with respect to the return of a
Member's Capital Contributions or profits from the operation of the
Company. No Member shall be liable for any debt or liability of the
Company unless same shall be separately guaranteed or endorsed by a
Member in that Member's personal capacity. No Member shall be liable,
responsible or accountable in damages or otherwise to the Company or
any other Member for any loss or damage incurred by the Company or the
Member by reason of any act or omission performed or omitted by the
Member on behalf of the Company, provided that the Member acted (i) in
good faith, and (ii) in a manner reasonably believed by the Member to
be within the scope of the authority granted to him by this Agreement
and in the best interest of the Company. The foregoing limitation of
liability shall not apply to such losses to, or damages incurred by,
the Company or the Members that result from the Member's gross
negligence, intentional misconduct or breach of a fiduciary duty owed
to the Company or the Members.
4.22 INDEMNITY
Except as otherwise provided for herein, to the fullest extent
permitted by law the Company shall indemnify, defend and hold harmless
each Member and make advances for expenses to each Member arising from
any loss, cost, expense, damage, claim or demand, in connection with
the Company, the Member's status as a Member of the Company, the
Member's participation in the management, business and affairs of the
Company or such Member's activities on behalf of the Company. The
Company shall also indemnify, defend and hold harmless its Officers,
employees and Managers from any loss, cost, expense, damage, claim or
demand in connection with the Company, any such Person's participation
in the business and affairs of the Company, or such Person's activities
on behalf of the Company. Each Member shall be named as an additional
insured in any liability insurance policy secured or obtained by or on
behalf of the Company. Upon request of any Member, each Member agrees
to notify its present or future insurer or insurers that it desires to
waive subrogation against the other parties to this Agreement and to
verify that such waiver has been made part of the policy. Each of the
parties hereby agree to indemnify, and hold the other harmless for any
loss sustained because of the other's failure to carry out the
obligation provided in this agreement relating to the waiver of
subrogation.
4.23 RELATED PARTY TRANSACTIONS
(a) Anything in this Agreement to the contrary notwithstanding
(other than as provided in Section 4.23(b) and (c)), it is
agreed by and among the Company and its Members that the
Company shall not enter into any contract, agreement or
transaction with any Member or Affiliate of the Company; or
with any individual family member (spouse, child, sibling or
parent) of any Member of the Company; or with any Affiliate,
corporation, partnership or legal entity owned (10% or more)
or controlled by any Member or Affiliate of the Company, or an
immediate family member thereof; or any individual which is a
shareholder or other equity interest owner in a corporation,
partnership or limited liability company which is a Member or
Affiliate, without the Majority Vote of the remaining
disinterested Members which shall be calculated by omitting
the votes attributable to the interested Member. The following
are non-exclusive examples of transactions covered by this
section and requiring consent of a majority of the
disinterested Members:
(i) sale of the Company's real estate or movable property
or assets to the Members, their immediate family
members or related entities or Affiliates;
(ii) leasing of the Company's real estate or movable
property or assets, or any portion thereof to or from
the Members, their immediate family members or
related entities or Affiliates;
(iii) entering into contracts for the management,
servicing, repair or
improvement of the Company's business, real estate,
movable property or other assets, or any portion
thereof, with the Members, or their immediate family
members or related entities or Affiliates.
(iv) employment or professional services agreements.
(b) Notwithstanding the foregoing, the Members agree that LHC
Group, LLC, the Company's Manager, may provide operating
capital to the Company at its cost as provided in Section
4.29, and in conjunction therewith shall be authorized to
grant a security interest in the Company's accounts
receivables to any lender of such funds. Further, the Members
agree that LHC Group, LLC shall provide management services to
include payroll, billing, purchasing, accounts payable
processing, accounting, and similar services to the Company
and shall be entitled to reimbursement for its Direct Costs of
furnishing same. The term "Direct Costs" as used in this
Section 4.23 (b) shall mean all reasonable expenses incurred
by Manager on behalf of the Company, including Manager's
reasonable actual costs of personnel, equipment, supplies and
other expenses incurred in providing the management services,
including Manager's functional allocation of home office costs
according to Medicare principles of cost allocation for
payroll, salaries and benefits administration, accounts
payable, billing direction of home health operations, and
quality assurance and performance improvement, and provided
that such Direct Costs shall not exceed such charges as are
reasonable and necessary in accordance with industry standards
and shall, to the extent applicable, meet the criteria of any
applicable safe harbors. Manager's Direct Costs shall be an
expense of the Company.
(c) Notwithstanding the foregoing, the Members agree that the
Company may enter into the following transactions with
Hospitals, or their affiliates as deemed necessary for the
continued operations of the home health agency:
(i) Lease of available office space for the home health
agency branch offices at fair market value for
operations of the Company, provided the parties
intend that the lease shall meet the criteria of the
lease-rental safe harbor to the federal laws
prohibiting payments for referrals; and
(ii) Ancillary services agreements for the provision of
ancillary services to patients served by the Company
and necessary for the operations of the Company,
including, but not limited to, laboratory, pharmacy,
central services, maintenance, nursing, and medical
records services.
(c) In no event may the services provided or the expenses, rents
or other charges incurred under the foregoing provisions in
any related party transactions or any other transactions in
which the Company is involved, violate any criteria of any
applicable safe harbor provisions relating to federal laws
prohibiting payments for referrals or other regulations
prohibiting payments in excess of fair market value,
to the end that all transactions in which the Company is
involved may comply with and not be in violation of any
applicable regulations.
4.24 CONTRACTS IN VIOLATION
Any contract, agreement, or transaction entered into without the
consent of the disinterested Members as required in Section 4.23 above
or as otherwise permitted herein, shall be absolutely null and void and
of no force and effect as concerns the Company and the disinterested
Members.
4.25 NO INDEMNIFICATION
The limitation of liability and indemnification provisions of Sections
4.21 and 4.22 of this Agreement shall not apply to any transaction
entered into in violation of Sections 3.3 and 4.23 above. Furthermore,
the limitation of liability and indemnification provisions of Sections
4.21 and 4.22 of this Agreement shall not apply to any Member if that
Member is determined to have breached any fiduciary duty to the
Company. In such event, the Member shall promptly reimburse to the
Company any sums advanced under Sections 4.21 or 4.22.
4.26 MEMBERS' AND OFFICERS' COMPENSATION
Any salaries and other compensation of the Members or Officers shall be
fixed by the Majority vote of disinterested Members , and no Member
shall be prevented from receiving such salary by reason of the fact
that he is also a Member of the Company. The salary fixed by the
Members shall not exceed reasonable compensation for the services
rendered in accordance with industry standards and any applicable
regulations.
4.27 TAX ELECTIONS; TAX MATTERS PARTNER.
All elections required or permitted to be made by the Company under the
Code shall be made by a Majority Vote of the Members. For all purposes
permitted or required by the Code, the Members constitute and appoint
its initial Manager as Tax Matters Partner or, if he is no longer the
Manager, then such other Member or Manager as shall be elected by the
Members by Majority Vote. The provisions on limitations of liability
and indemnification of the Members set forth in Article 4 hereof shall
be fully applicable to the Tax Matters Partner in his or her capacity
as such. The Tax Matters Partner may resign at any time by giving
written notice to the Company and each of the other Members. Upon the
resignation of the Tax Matters Partner, a new Tax Matters Partner may
be elected by Majority Vote of the Members.
4.28 INSURANCE.
The Company, for itself and its Members as additional insureds, shall
maintain in force and effect general commercial liability insurance
coverage of no less than $1,000,000 per
incident and $3,000,000 in the aggregate; professional liability
insurance of no less than: (i) $1,000,000 per incident and $3,000,000
in the aggregate, or (ii) $100,000 per incident and $300,000 in the
aggregate, subject to and including participation as a Qualified
Healthcare Provider in the Louisiana Patients' Compensation Fund; and
workers' compensation insurance in the minimum statutory amount for so
long as this Agreement is in effect and for a term of three (3) years
thereafter.
4.29 FINANCING.
For the Company's benefit, LHC GROUP, LLC, as Manager, is hereby
authorized to obtain operational financing from its credit facility,
GMAC-RFC Health Capital or its successor, and is authorized to grant a
security interest of up to one hundred percent (100%) of Company's
accounts receivables to secure same, provided, however, that such
operational financing in the aggregate shall not exceed the greater of:
(i) $200,000 or (ii) sixty (60) days trailing net revenues without the
Majority vote of the Members. For the purposes of this section the
trailing net revenues shall equal the sum of the net revenues generated
by the Company during the sixty (60) days preceding the date of the
determination of same.
ARTICLE 5
CAPITAL CONTRIBUTIONS AND ACCOUNTS, AND ACCOUNT ALLOCATIONS
5.1 CAPITAL CONTRIBUTIONS
(a) Initial Capital. The Members shall each own Units in the
Company with their initial Interests in the Company equal to
the proportionate percentages as shown in the Membership
Schedule. The Units shall represent a participation interest
in the Net Profits and Net Losses of the Company and each
branch office as follows:
(1) All Class A Units: 67% in the operations of the branch offices doing business as
St. ▇▇▇▇▇▇ HomeCare; ▇▇▇▇▇▇ HomeCare; Acadia-St. ▇▇▇▇▇▇
HomeCare; and Franklin HomeCare, and 67% in the operations of
the Company's office in Lafayette, Louisiana; and
100% of all other operations of the Company.
(2) Each Class B Unit: 33% in the operations of the branch office doing business as
St. ▇▇▇▇▇▇ HomeCare.
(3) Each Class C Unit: 33% in the operations of the branch office doing business as
▇▇▇▇▇▇ HomeCare.
(4) Each Class D Unit: 33% in the operations of the branch office doing
business as Acadia-St. ▇▇▇▇▇▇ HomeCare.
(5) Each Class E Unit: 33% in the operations of the branch office doing business as
Franklin HomeCare.
(b) Allocation of Profits and Losses; Equity Interests.
(1) Each Company branch office shall maintain a separate
accounting for Profits and Losses. The parties agree
that the Members' Interests in income and losses of
the business activities conducted by the Company in
each branch office shall be equal to the percentages
calculated as of the time of the allocation by
dividing the Units held by each Member by the
aggregate Units held by all Members participating in
the branch office.
(2) The equity interests of each Class of Units shall be
based upon the product of the Member's participation
interest in each branch office and the proportionate
amount of the proceeds calculated using the Net
Revenues of each branch office. For example, (this is
an illustrative example only and is not intended to
reflect current operations) if the proceeds of a sale
or merger of the Company were $1,000,000:
Net Proportionate Hospitals'
Branch Rev. % Proceeds Proceeds
------ ---- --- ---------- ---------
i. Lafayette 500 42% $420,000
ii. Abbeville 100 8% $ 80,000
iii. ▇▇▇▇▇▇▇ 200 17% $170,000
iv. Franklin HomeCare 50 4% $ 40,000 $ 13,200
v. St. ▇▇▇▇▇▇ ▇▇ 200 17% $170,000 $ 56,100
vi. A-St.L HomeCare 100 8% $ 80,000 $ 26,400
vii. ▇▇▇▇▇▇ HomeCare 50 4% $ 40,000 $ 13,200
--- --- ---------- --------
1,200 100% $1,000,000
The Class A Member would receive the remainder of the
proceeds. In the event of the merger, consolidation
or sale of substantially all of the assets of the
Company, the Members shall receive their
proportionate proceeds calculated in accordance with
this illustration.
(c) Special Capital Contributions. It is anticipated that the
Company will from time to time require additional capital to
purchase or acquire additional assets or entities, or
interests therein, and to fund the future operations of the
Company. The Members will contribute to the capital of the
Company, according to their respective Membership Interests,
as set forth in Sections 5.1(b) above, cash sums equal to the
sums necessary to defray the costs of such operations not
covered by Company revenues in such amounts as are approved by
an unanimous vote of the Members. Following approval, should a
Member fail to pay its share of authorized additional capital
within ten (10) days of written notice from any
Member or Manager to do so, it shall be liable to the other
Member or Members therefor, as provided in Section 5.1(d)
below; provided, however, that in lieu of the penalty set
forth in Section 5.1(d), upon a Majority Vote of the
non-defaulting Members, the defaulting Member shall be deemed
to have forfeited its interest in the Company to the
non-defaulting Member or Members who choose to advance the
defaulting Member's unpaid capital contribution. Written
notice of forfeiture shall be delivered to the defaulting
Member within sixty (60) days of the default in capital
contribution. The provisions of this Section 5.1(c) shall not
apply to capital calls unless such call has been approved by a
unanimous vote prior to a default.
(d) Penalty for Failure to Make Capital Contributions. Upon
failure of any Member to promptly remit to the Company any sum
due by it under the terms of this Section 5.1, and if no
non-defaulting Member chooses to declare a forfeiture of
interest under Section 5.1(c) above, then another Member may,
but shall not be required to, advance such sum or sums. Any
Member making such an advance shall be entitled to recover
300% of the amount of such advance from the first Distributive
Shares to which the other Member would have otherwise been
entitled as a Member of the Company in the absence of its
default hereunder. The provisions of this Section 5.1(d) shall
not apply to capital calls unless such call has been approved
by the unanimous consent of the Members prior to a default.
(e) Interest on and Return of Capital Contributions. No Member
shall be entitled to interest on such Member's Capital
Contribution or to a return of its Capital Contribution,
except as otherwise specifically provided for herein.
5.2 CAPITAL ACCOUNTS
A Capital Account shall be maintained on the books of the Company for
each Member which shall be begun, determined and maintained through the
full term of the Company in accordance with the Capital Accounting
rules of Treasury Regulations, and otherwise in accordance with
generally accepted accounting principles consistently followed. A
Member's Capital Account shall consist of his capital contributions to
the Company:
(1) Increased by his share of Company profits; and
(2) Decreased by his share of Company losses and by cash
distributions to him.
No Member shall withdraw any part of its Capital Account, except upon
the approval of the Members.
5.3 DISTRIBUTIONS
The Company's Net Profits which are in excess of the current or
projected needs of the Company may be distributed on an interim basis
each Calendar Quarter to the Members
in accordance with the allocations set forth in Section 5.1. Such
payments are referred to herein as "Distributive Shares." However, no
distribution shall be made to Members if prohibited by the Act. Such
distributions shall be made no later than 60 days following the end of
each Calendar Quarter. All interim quarterly distributions shall be
reconciled annually and corrective distributions shall be made no later
than March 31st of each year for the prior fiscal year. Amounts
calculated for any partial quarter or annual periods shall be
determined proportionately, but shall be subject to the annual
reconciliation.
5.4 LOANS TO COMPANY
To the extent approved by a Majority Vote of the Members, any Member
may make a secured or unsecured loan to the Company.
5.5 PRIORITY AND RETURN OF CAPITAL.
No Member shall have priority over any other Member, either as to the
return of Capital Contributions or as to Net Profits, Net Losses or
Distributions. This Section shall not apply to loans (as distinguished
from Capital Contributions) which a Member has made to the Company.
5.6 MEMBERS' RIGHTS OF CONTRIBUTION.
If for any reason, a Member sustains any liabilities or is required to
pay any losses arising out of, or directly connected with, the Company,
or the execution of any agreements or guarantees in connection with the
Company's operations, which are in excess of his, her or its
proportionate Membership Interest in the Company, the other Members
shall promptly reimburse such Member this excess, so that each and
every Member of the Company will then have paid his, her or its
proportionate share of such losses to the full extent of his, her or
its Membership Interest in the Company.
5.7 GUARANTEE.
LHC Group, LLC as parent company of Louisiana Health Care Group, LLC,
Company's Member, does hereby agree to guarantee all of Louisiana
Health Care Group, LLC's obligations herein, including any obligation
to contribute capital to the Company for losses incurred in its
operations.
ARTICLE 6
TRANSFER OF INTERESTS AND WITHDRAWAL
6.1 RESTRICTIONS ON TRANSFER.
A Member may not sell or otherwise transfer the Member's Units in the
Company except as provided in this Article. In the event that a Member
sells or transfers, or purports or
attempts to sell or otherwise transfer, his, her or its Units except as
provided in this Article, that Member shall be deemed to have
involuntarily withdrawn from the Company effective on the date of the
sale or transfer, or the purported or attempted sale or transfer. Any
such sale or transfer, or purported or attempted transfer shall not
have effect with respect to the Company and its Members, and any such
transferee shall be entitled only to receive the value of the Units
transferred in accordance with the provisions of Section 6.3. The
transfer restrictions of this Article shall be binding on the Members,
the Company, their heirs, legatees, legal representatives, successors,
assigns, and transferees.
6.2 BUY-SELL OFFERS
(a) At any time, either Member ("Transferor Member") may offer to
purchase all Units of the other Member (the "Remaining
Member"). The Transferor Member's offer shall: (i) be in
writing; (ii) comply with the notice requirements herein; and
(iii) specify the purchase price as the value for the
Remaining Member's Interest in an amount not less than that
set forth in Section 6.5 for the Remaining Member's Interest.
The Transferor Member's offer to purchase shall also contain
an offer by the Transferor Member to sell all of the
Transferor Member's Units to the Remaining Member on the same
terms and conditions contained in the offer except that the
purchase price of the Member's Units shall be the value set
forth in Section 6.5 for the Transferor Member's Units.
(b) Within thirty (30) days of the date of the notice of the
Transferor Member's offer, the Remaining Member shall provide
notice to the Transferor Member of its agreement to either (i)
purchase the Transferor Member's Units or (ii) sell its Units
to the Transferor Member in accordance with the terms of the
offer. Regardless of which offer is accepted by the Remaining
Member, the transfer of Units shall be completed within ninety
(90) days of the date of the notice of the Transferor Member's
offer. Transfer shall be effected by amendment to this
Agreement, payment of the purchase price and execution of
other documents reasonably necessary to complete the transfer.
Payment of the purchase price shall be as set forth in Section
6.5.
(c) If the Remaining Member accepts the Transferor Member's offer
to purchase its Units, the Transferor Member may assign all or
part of the right to purchase the Remaining Member's Units to
others, however, the Transferor Member shall remain liable to
the Remaining Member, jointly and severally with all such
assignees, for timely completion of the transfer and payment
of the purchase price.
(d) If the Remaining Member fails to provide notice to the
Transferor Member as provided in Section 6.2(b), the
Transferor Member's offer to purchase the Membership Interest
of the Remaining Member shall be deemed accepted.
(e) In the event the transfer is not completed within ninety (90)
days of the date of notice of the Transferor Member's offer,
the Company and the non-defaulting
Member may institute legal proceedings to enforce the
obligations of the defaulting Member and, if successful, the
defaulting Member shall be liable for all attorneys' fees and
costs incurred by the Company and the non-defaulting Member.
6.3 TRANSFER OF MEMBER'S INTEREST TO THIRD PARTIES.
(a) Notwithstanding any other provision of this Agreement to the
contrary, no Member may sell, assign, give, devise, pledge,
hypothecate, mortgage, or in any other manner transfer any
portion of his Units, without the prior written consent of all
of the other Members, and any such transfer shall be subject
to the provisions of this Section 6.3, provided, however, that
this Section shall not apply to a transfer under Section 6.2.
(b) If a Member desires to effect any such transfer to a third
party, such Member or his legal representative (the
"Transferor Member") shall first give written notice (the
"Offer Notice") to the Company and the other Members (the
"Remaining Members") which shall state:
(i) The extent of the Units to be conveyed;
(ii) The complete terms upon which the Transferor Member
seeks to convey the Units (such terms to be limited
to consideration for the Units in the form of cash
and/or notes receivable); and
(iii) The name and address of any transferee relating to
such conveyance.
(c) Upon receipt of the Offer Notice, the Remaining Members shall
have the unrestricted right to (i) consent to such transfer;
or (ii) refuse to consent to such transfer, in which case such
refusal shall cause the following rights and obligations to
arise in the following order of priority, provided, however,
that this Section shall not apply to a transfer under Section
6.2:
(d) The Remaining Members shall have the option for a period of
thirty (30) days from receipt of the Offer Notice within which
to purchase the offered portion of the Transferor Member's
Units on the same terms and conditions set forth in the Offer
Notice. For the first fifteen (15) days of the thirty (30) day
period, each Remaining Member electing to purchase part of the
Transferor Member's Units shall have the primary right to
purchase a proportion of the Transferor Member's Units
calculated as the product of: the Units of the Transferor
Member described in the Offer Notice multiplied by a fraction,
the numerator of which shall consist of the purchasing
Remaining Member's Units and the denominator of which shall be
the aggregate Units of the Remaining Members electing to
exercise their primary right to purchase the Transferor
Member's Units.
(e) In the event that any portion of the Transferor Member's Units
described in the Offer Notice has not been purchased by the
Remaining Members at the end of the
initial fifteen (15) day period, the remainder shall be
available for purchase by these Remaining Members in the
exercise of their secondary right. Each Remaining Member
electing to exercise his secondary right shall have the option
for a period of fifteen (15) days to purchase, on a pro-rata
basis, such part of the Transferor Member's Units as was not
elected for purchase by the Remaining Members in the exercise
of their primary right.
(f) In the event that any portion of the Transferor Member's Units
described in the Offer Notice has not been purchased by the
Remaining Members at the end of the thirty (30) day period,
the Company shall have the option for a period of fifteen (15)
days to purchase any remaining portion of the Transferor
Members' Units that was not purchased by the Remaining Members
in the exercise of either their primary or their secondary
rights.
(g) In the event that any portion of the Transferor Member's Units
described in the Offer Notice has not been purchased by the
Company at the end of the fifteen (15) day period, the
Transferor Member may transfer the Units on the terms
contained in the Offer Notice, and the consent of the Company
and its Members if not expressly granted shall be implied. The
Transferor Member shall complete the transfer within ninety
(90) days (or such later date as may be specified in the Offer
Notice) after receipt of the Offer Notice by the Remaining
Members, but only with such transferee and only on such terms
as were specified in the Offer Notice.
6.4 INVOLUNTARY TRANSFERS OF UNITS.
(a) Any Member shall give written notice to the Company, if such
Member (the "Transferor Member"): (i) is deemed to have
involuntarily withdrawn from the Company under the terms of
Section 6.12 of this Agreement; (ii) becomes the subject of a
proceeding under the U.S. Bankruptcy Code, or if a trustee,
receiver, liquidator, or other representative of the Member's
personal or business assets is or may be appointed; or (iii)
becomes insolvent or makes an assignment for the benefit of
the Member's creditors; or (iv) becomes involved in any other
proceeding or commits any other act by which such Member, or a
trustee, receiver, liquidator, or other representative of such
Member, is or may be permitted or required to acquire or
convey all or any portion of such Member's Units.
(b) The Company shall be obligated to purchase the entirety of the
Transferor Member's Units, which purchase shall be consummated
in the manner specified in this Section. The purchase price of
any Units purchased pursuant to this Section shall be equal to
the book value of the Units as of the close of the Company's
fiscal
year immediately preceding the event resulting in the
involuntary transfer, less any negative Capital Account
balance of the Member. In the event the involuntary transfer
is occasioned prior to the end of the Company's first fiscal
year, the purchase price of any Units purchased pursuant to
this Section shall be equal to the book value of the Units as
of the close of business on the day on which the event causing
the involuntary transfer occurred, less any negative Capital
Account balance of the Member. The book value of the Units
shall be determined by the Company's public accountant, and
the accountant's determination when rendered shall be
conclusive among the Members, unless a Member disputes such
determination by written notice within ten (10) business days
of notice to such Member of such book value. In the event of
such dispute, the disputing Member shall have the right to
engage independent public accountants to make such
determination and the average of the two accountants'
determinations shall be conclusive.
(c) If the Company is obligated to purchase the interest of a
Transferor Member in the Company pursuant to the provisions of
this Section, the Company shall do so by giving written notice
to the Transferor Member, or the Transferor Member's trustee,
receiver, or other representative, or the appropriate court,
all as the case may be. Upon the giving of such notice, the
Company, as purchaser, and the Transferor Member, as seller,
shall be obligated to consummate the sale and purchase of the
Units, or portion thereof, at the Company offices within sixty
(60) days after the date of the Company's notice.
(d) The purchase price shall be paid by the Company with a
non-negotiable promissory note payable in twenty equal
quarterly installments, commencing ninety days after the
effective date of the transfer, with interest at the prime
rate published in the Wall Street Journal on the date of the
transfer without prepayment penalties. The note shall contain
a subordination clause subordinating the note to all other
debts of the Company. The note shall be unsecured, except that
the Company may grant a security interest securing payment of
the promissory note in the Units transferred if the cause of
the involuntary withdrawal is specified in Section 6.12 (c)
(ii), only. At its sole option the Company may pay all or part
of the purchase price in cash at the time of the transfer.
6.5 VALUATION FOR PURPOSES OF SECTIONS 6.2 & 6.12 (e). The Members agree
that the value of the Company's Units for each class of Units for
events described in Sections 6.2 & 6.12 (e) herein shall be equal to
the product of: (i) FIVE HUNDRED PERCENT (500%) of the Company's
Earnings Before Interest, Taxes, Depreciation and Amortization (EBITDA)
realized from the Company's operations of the affected branch office(s)
for the fiscal year ending prior to the event giving rise to the
valuation, and (ii) for each Class of Units the percentage of
participation in the operations of the branch office(s) as set forth in
Section 5.1 above. The purchase price shall be paid by the transferee
with an unsecured, non-negotiable promissory note payable in twenty
(20) equal quarterly installments, commencing ninety days after the
effective date of the transfer, with interest at the prime rate
published in the Wall Street Journal on the date of the transfer
without prepayment penalties. If the Company is the transferee, the
note shall contain a subordination clause subordinating the note to all
other debts of the Company. At his, her
or its sole option the transferee may pay all or part of the purchase
price in cash at the time of the transfer.
6.6 SURVIVAL OF LIABILITIES. No sale or other transfer of an Units, even if
it results in the substitution of the transferee or assignee as a
Member herein, shall release the Transferor or assignor from those
liabilities to the Company or the other Members which arose prior to
such sale or assignment or which otherwise survive such sale or
assignment as a matter of law.
6.7 NEGATIVE CAPITAL ACCOUNTS. If a Transferor Member has a negative
Capital Account balance, the Transferor Member shall pay the Company
the amount of the negative Capital Account balance as of the transfer
date. If the Transferor Member shall fail to pay the negative Capital
Account balance, the Company shall have the right to set-off or recoup
any such amounts from any distributions due to, or from any amounts
owed by the Company to, the Transferor Member, the transferee Member or
the assignee.
6.8 LOANS AND PERSONAL GUARANTEES. Any loans owed by the Company to a
Transferor Member shall be paid in full at closing. On or before
closing of any transaction pursuant to this Article 6, the transferee
Member shall also be obligated to obtain a full release of the
Transferor Member (and the individual shareholder(s) or members of such
Member) from all personal guarantees granted on behalf of the Company.
6.9 RIGHTS OF PERMITTED TRANSFEREES OR ASSIGNEES. A permitted transferee or
assignee of a Member's Interest shall not become a Member without the
Majority Vote of the Members and compliance with the provisions of
Section 3.2 of this Agreement. Any transferee or assignee of Units in
the Company who is not admitted to membership in the Company shall not
be entitled to vote, and shall not be entitled to participate in the
management of the Company, or to have access to any records or
communications of the Company or its Members, or to participate in any
manner in the operation of the Company. He, she or it will, however, be
bound by and subject to this Agreement and the terms and conditions of
any other agreement pertaining to the restrictions on the transfer of
an Interest in the Company.
6.10 SEVERABILITY. The parties agree that each term and condition contained
in this Article 6 shall be liberally construed to give effect to the
parties' intent and shall be considered severable; and if, for any
reason, any provision or provisions, or portions thereof, herein
contained are determined to be invalid, overbroad, or unenforceable for
any reason, such provision shall be deemed modified to the extent
required to render it valid, enforceable and binding, and such
determination shall not affect the validity or enforceability of any
other provision of this Agreement. In the event any provision of this
Article 6 is held to be unenforceable or void for any reason, the
remainder of the provisions of this Article shall be unaffected and
shall remain in full force and effect in accordance with its terms.
6.11 SPECIFIC PERFORMANCE; ENFORCEMENT.
(a) In addition to any other remedies provided for herein, in the
event any transfer required under this Article 6 is not timely
completed in accordance with the terms hereof, the Company
and/or each non-defaulting Member may seek specific
performance of the obligations of the defaulting party and may
institute legal proceedings to enforce the obligations of the
defaulting party and, if successful, the defaulting party
shall be liable for all reasonable attorneys' fees and costs
incurred by the non-defaulting party.
(b) The Members hereby declare and agree that it is impossible to
measure in money damages that which will accrue to the Company
and its Members by reason of a failure of any Member hereto to
perform any of the obligations under this Article 6.
Therefore, if any party hereto or the personal representatives
of a decedent shall institute any action or proceeding to
enforce the provisions of this Article 6 by injunction
(including the granting of a temporary restraining order), any
Member against whom such action or proceeding is brought
hereby waives the claim or defense therein that such Member or
such personal representative has an adequate remedy at law,
and such Member shall not urge in any such action or
proceeding the claim or defense that such remedy at law
exists.
6.12 WITHDRAWAL OF A MEMBER
(a) Voluntary Withdrawal. Any Member may withdraw from the Company
at any time by notice to all other Members.
(b) Involuntary Withdrawal. Any circumstance compelling the
involuntary transfer of a Member's Interest, including,
without limitation, service of any writ of seizure applicable
to his Interest or adjudication of bankruptcy of a Member,
shall be deemed a withdrawal by the Member affected thereby
effective upon the service of the writ or notice of the
adjudication.
(c) Automatic Involuntary Withdrawal. In addition to the other
events of withdrawal contained herein, a Member shall be
deemed to have withdrawn from the Company effective on the
date on which one of the following events occurs:
(i) the individual Member, or an officer, director,
commissioner, shareholder or other equity holder of a
corporate Member is convicted of a felony (unless
such felony is unrelated to the businesses of the
Company or the Members);
(ii) the individual Member dies, is interdicted or
determined to be incompetent; or
(iii) the Member materially breaches this Agreement and
fails to cure such breach within thirty (30) days of
receipt of notice of such breach;
(iv) the Member, or an officer, director, commissioner,
shareholder or other equity holder of a corporate
Member is excluded or debarred from participation in
the Medicare or Medicaid programs; or
(v) the Member sells or transfers, or attempts to sell or
transfer of the Member's interest in the Company
without compliance with the provisions of this
Article VI.
(d) Withdrawal from the Company, in and of itself, shall under no
circumstances relieve the former Member of his, her or its
obligations to: (i) make any additional capital contributions
approved by the Members prior to the effective date of the
former Member's withdrawal; or (ii) to fulfill his, her or its
contractual obligations to the Company incurred or accrued
prior to the effective date of the former Member's withdrawal.
In either event, the Company shall have a right of set-off
against any distribution due to a withdrawing former Member.
(e) In the event of a voluntary withdrawal of a Member, if the
Company is continued in accordance with the provisions of
Section 7.1, the withdrawing Member shall have distributed to
him the amount specified in Section 6.5 in accordance with the
terms therein.
(f) In the event of a voluntary withdrawal of a Member, if the
Company is not continued in accordance with the provisions of
Section 7.1, the Company shall be liquidated and dissolved
according to the provisions of Article 7.
ARTICLE 7
DISSOLUTION AND LIQUIDATION
7.1 DISSOLUTION
Subject to the remaining terms of this Agreement the Company shall be
dissolved upon the occurrence of any one of the circumstances
hereinafter set forth:
(1) upon the termination of this Agreement and the failure of the
Members to agree upon a new Operating Agreement within ninety
(90) days following the effective date of the termination; or
(2) upon approval of the Members by an Majority vote; or
(3) Upon the death, interdiction, withdrawal, bankruptcy,
liquidation or dissolution of a Member or the occurrence of
any other event which terminates the continued membership of a
Member in the Company, however, such event shall not cause a
dissolution of the Company if within ninety (90) days after
such event, the Company is continued by the unanimous vote of
the remaining Members.
7.2 DISSOLUTION FOR NON-COMPLIANCE WITH LAW.
The parties hereto acknowledge and agree that the terms and conditions
of this Agreement and the anticipated conduct of the parties hereunder
are intended to satisfy all state and federal laws and regulations
related to healthcare fraud and abuse and self-referral of patients,
including, without limitation, 42 U.S.C. Section 1320-7b; 42 U.S.C.
Section 1395nn, and La. R.S. 37:1744 and 1745. All contracts and
compensation arrangements of the Company shall likewise comply with
law. Manager and Company shall use their best efforts to comply with
all laws and regulations regarding billing for services provided by the
Company. Should any change in Louisiana or federal laws or regulations
occur during the term of this Agreement rendering any term or provision
of this Agreement invalid, or should the parties determine that this
Agreement or the Members' participation in the Company result in a
violation of any such laws or regulations, the parties agree that this
Agreement shall be amended within thirty (30) days of such change or
determination. If the parties are unable to agree to such modification
or amendment during the said thirty (30) days, the parties hereby agree
that the Company shall be dissolved as provided hereunder.
7.3 LIQUIDATION
Upon dissolution of the Company, if the Company is not continued, the
Members shall proceed diligently to finalize the affairs of the Company
and distribute its assets in accordance with the provisions of Section
7.5. During this period, the Members shall continue to operate and
otherwise deal with Properties of the Company, consistent with the
liquidation thereof, but shall have no further power or authority to
bind the Company except to sell or distribute its assets and wind up
its affairs in compliance herewith.
7.4 FINAL ACCOUNTING
Upon dissolution of the Company, the Members shall cause the Company's
accountant to make, at the Company's expense, a full and proper
accounting of the assets, liabilities, operations and Capital Accounts
of the Company as of and through the last day of the month in which the
dissolution occurs.
7.5 LIQUIDATION DISTRIBUTIONS
As expeditiously as possible after the dissolution of the Company, the
Members shall cause the debts and obligations of the Company to be paid
and discharged, including payment or offset of all obligations owed to
Members by the Company and all obligations of Members owed to the
Company. Thereafter, the remaining assets shall be distributed to the
Members in amounts proportionate to the Members' Units as determined on
the date of the distribution.
7.6 RETURN OF CONTRIBUTION NONRECOURSE TO OTHER MEMBERS.
Except as provided by law or as expressly provided in this Operating
Agreement, upon dissolution, each Member shall look solely to the
assets of the Company for the return of the Member's Capital Account.
If the Company property remaining after the payment or discharge of the
debts and liabilities of the Company is insufficient to return the
Capital Account of one or more Members, including, without limitation,
all or any part of that Capital Account attributable to Capital
Contributions, then such Member or Members shall have no recourse
against any other Member.
ARTICLE 8
BOOKS AND RECORDS
8.1 ACCOUNTING PERIOD.
The Company's accounting period shall be the Fiscal Year which shall
begin on January 1st of each year.
8.2 RECORDS AND REPORTS.
At the expense of the Company, the Company shall maintain complete and
accurate books, records and accounts of all operations and expenditures
of the Company. The Company shall keep at its principal place of
business the books of the Company which shall contain a list showing
the names and addresses of the Members as of a reasonably current date
and the extent of their interest in the Company. Each Member, and their
duly authorized representatives, shall have the right at reasonable
times to access and examine, and audit at the Member's expense, if
desired, the books of the Company, including such financial records,
and other reasonably available records and information concerning the
operation of the Company and to make copies thereof at the expense of
such Members, but only upon such Member's written request. Manager
agrees that it shall provide to each Member reasonable access to its
records supporting the Direct Costs and other expenses charged or
allocated to Company by Manager.
8.3 TAX RETURNS.
The Company shall prepare and timely file all tax returns required to
be filed by the Company pursuant to the Code and all other tax returns
deemed necessary and required in each jurisdiction in which the Company
does business. Copies of such returns, or pertinent information
therefrom, shall be furnished to the Members upon request within a
reasonable time after the end of the Company's fiscal year.
8.4 AUDIT.
At the request of any Member, the books of the Company may be audited
annually at the expense of the Company by an independent public
accounting firm selected by the Manager.
8.5 ANNUAL REPORTS.
Within the following time periods after the close of each fiscal year,
the Company shall deliver to each Member the following:
(a) Within one hundred twenty (120) days after the end of such
fiscal year, financial statements of the Company for such
year, including a balance sheet, a profit and loss statement,
a statement of Members' equity and changes in financial
position, such statements (i) to be prepared in accordance
with generally accepted accounting principles and (ii) to
include a summary itemization, by classification, of the
compensation and reimbursement paid by the Company, directly
or indirectly, to all Members.
(b) Within sixty (60) days after the close of such fiscal year, a
report providing such tax information as may be reasonably
required by each Member for federal and state income tax
reporting purposes.
ARTICLE 9
NON-COMPETITION, NON-SOLICITATION AND NON-DISCLOSURE
9.1 NON-COMPETITION.
Each Member agrees that for so long as it is a Member of the Company,
the Member shall not own, control, manage, have a business interest in,
or be financially interested in a home health agency competing with the
Company in providing home health services within the Service Area
without the Majority Vote of the Members, PROVIDED, HOWEVER, that such
restriction shall not apply to services provided in the Service Area by
subsidiaries and Affiliates of Louisiana Health Care Group, LLC.
9.2 NON-SOLICITATION.
Each Member agrees that for so long as it is a Member of the Company
and for a period of one year following the transfer of its interests,
its voluntary or involuntary withdrawal from the Company, or the
dissolution and liquidation of the Company, the Member shall not
directly, or through a subsidiary or affiliated company or employee
leasing or staffing company, without the consent of the Members,
solicit for employment or hire or employ or contract with any person to
work for it who is or was employed by Company or Manager, during the
term of the Member's membership, whether or not such employee is
employed by the Company or Manager at the time of such solicitation or
hire. This restriction shall not apply to Hospital with respect to any
Manager or Company staff who were employed by Hospital on or before the
Effective Date hereof. In the event a party violates this provision,
the offending party shall pay the other stipulated damages in an
amount equal to one year of such employee's most recent salary or wages
paid to the employee by the other party.
9.3 NON-DISCLOSURE.
Each Member acknowledges that it will have access to certain
confidential information, trade secrets and proprietary information
which is exclusively the property of another Member or the Manager;
including, without limitation, documents, recordings, photographs,
policies, procedures, forms, patient/customer/client lists, public
relations and employee training materials. Each party agrees that
Manager's Service Value Points (SVP(R)) system and its Lifeline(R)
system are proprietary trade secrets of Manager and which are subject
to this Agreement. Each Member agrees that it will not, for so long as
it is a Member and for a period of two (2) years following its
voluntary or involuntary withdrawal, disclose to any third party, or
appropriate for their own use or for the use of any third person, the
other Member's or Manager's confidential information, trade secrets or
proprietary information.
9.4 INJUNCTIVE RELIEF.
Each Member acknowledges that in the event of any breach of this
Article 9, the other parties remedies at law would be inadequate and
therefore any affected party shall be entitled to obtain relief by
injunction to prevent competition, solicitation or disclosure by the
Member or Manager without the need to prove irreparable harm. The
affected Member's or Manager's remedies, in any event, shall be
cumulative of any and all other remedies available pursuant to
Louisiana law.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 FISCAL YEAR
The Fiscal Year of the Company shall begin on January 1st of each year.
10.2 PARTNERSHIP TAXATION
Neither the Company nor any Manager or Member may make an election for
the company to be excluded from the application of the provisions of
Subchapter K of the Code or any similar provisions of applicable state
law. The Members intend that the Company not be a partnership or joint
venture, and that no Member or Manager be a partner of or joint
venturer with any other Member or Manager, for any purpose other than
federal and state tax purposes, and this Agreement may not be construed
to suggest otherwise. The provisions of Section 5.1(b) herein
respecting the allocation of Units shall control the allocation of
income, loss and tax items derived from the Company's operations.
10.3 NO PARTNERSHIP INTENDED FOR NON-TAX PURPOSES.
The Members have formed the Company under the Act, and expressly
disavow any intention to form a joint venture, a partnership or a
partnership in commendam (or limited partnership) under Louisiana law,
or laws of any other state. The Members do not intend to be partners
one to another or partners as to any third party. To the extent any
Member, by word or action, represents to another person that any other
Member is a partner or that the Company is a partnership, the Member
making such wrongful representation shall be liable to any other Member
who incurs personal liability by reason of such wrongful
representation.
10.4 NOTICES
All communication or notices required or permitted to be given under
this Agreement shall be in writing, and any communication or notice
shall be deemed to have been duly made upon receipt by mail, or by
facsimile transmission receipt of which has been duly acknowledged to
the Member's address as recorded in the records of the Company. Any
written notice sent certified mail to the address of record of the
recipient which is returned by the post office as unclaimed or
undeliverable for any reason shall be deemed to have been received. A
party may, by written notice so delivered to the Company, change the
address to which communications or written notices shall be made under
this Agreement.
10.5 AMENDMENTS
This Agreement may be amended only in writing approved by an Majority
Vote.
10.6 EXECUTION
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to constitute an original, and each of which
shall become effective when one or more counterparts have been executed
by each of the parties hereto and delivered to the Company. The Members
each agree to cooperate, and to execute and deliver in a timely fashion
any and all additional documents necessary to effectuate the purposes
of the Company and this Operating Agreement.
10.7 APPLICABLE LAW; VENUE
This Agreement shall be governed by an construed and enforced in
accordance with the laws of the State of Louisiana.
10.8 SUCCESSORS OR ASSIGNS
The obligations herein undertaken and the rights herein conferred shall
be binding upon and inure to the benefit of the parties, and, where
applicable, their successors and assigns. The Members' interests, or
holdings of Units, in the Company shall not be affected by the sale,
merger, consolidation or public offering of any Member or its
successors. None of the provisions of this Operating Agreement shall be
for the benefit of or enforceable by any creditors of the Company or by
any Person not a party hereto. This Agreement is entered into solely to
benefit the Company and its subscribing Members, and is not entered
into or intended for the benefit of any third persons. The Parties
agree that this Agreement shall not be construed as a stipulation pour
autrui or a third party beneficiary contract.
10.9 REFERENCES
(a) Any reference in this Agreement to an Article, Section, or
Subsection shall be deemed to refer to the applicable Article,
Section or Subsection of this Agreement unless otherwise
stated herein.
(b) Common nouns and pronouns shall be deemed to refer to the
masculine, feminine, neuter, singular, and plural, as the
identity of the Person may in the context require.
10.10 EFFECTIVE DATE
This Agreement is entered as of the Effective Date set forth above, but
shall be deemed effective as of the date of the Company's filing of the
Articles with the Louisiana Secretary of State.
10.11 CONFLICTS WITH OTHER AGREEMENTS
(a) In the event of any conflict between the terms of this
Agreement and other permitted agreements by and between the
parties hereto related to the purposes of the Company, this
Agreement shall prevail.
(b) The Company may acquire or enter into one or more written
consulting agreements or employment agreements with Members or
affiliates of Members. To the extent such arrangements are in
writing and approved or authorized by the Majority Vote of the
disinterested Members, and subject to Section 4.23 herein,
such services may be compensated as provided in said
agreements and shall be deemed to be separate from those
services which the Member will provide to the Company as a
capital contribution pursuant to Section 5.1(a) herein.
10.12 NO ACTION FOR PARTITION.
No Member shall have any right to maintain any action for partition
with respect to the property of the Company.
10.13 INVALIDITY.
The invalidity or unenforceability of any particular provision of this
Operating Agreement shall not affect the other provisions hereof, and
the Operating Agreement shall be construed in all respects as if such
invalid or unenforceable provision were omitted. If any particular
provision herein is construed to be in conflict with the provisions of
the Act, the provisions of this Operating Agreement shall control to
the fullest extent permitted by applicable law. Any provision found to
be invalid or unenforceable shall not affect or invalidate the other
provisions hereof, and this Operating Agreement shall be construed in
all respects as if such conflicting provision were omitted.
10.14 DETERMINATION OF MATTERS NOT PROVIDED FOR IN THIS OPERATING AGREEMENT.
The Members shall decide any questions arising with respect to the
Company and this Operating Agreement which are not specifically or
expressly provided for in this Operating Agreement.
10.15 HIPAA
The HIPAA Business Associate Addendum attached hereto is made a part of
this agreement as if copied herein in extensio.
10.16 COUNTERPARTS AND FACSIMILE SIGNATURES.
This Agreement and any amendments or modifications thereto may be
executed in counterparts, each of which will be deemed to be an
original, but all of which together will constitute one and the same
agreement. Also, the Parties acknowledge that a facsimile of this
Agreement shall be binding and enforceable as an original and original
signatures will be delivered to replace all facsimile signatures.
10.17 COST OF ENFORCEMENT.
In the event that either Party shall be required to enforce the terms
of this Agreement, the prevailing Party shall be entitled to recover
the costs of such action, including, but not limited to, reasonable
attorney's fees.
[continued on next page]
10.18 SEVERABILITY.
In the event any provision of this Agreement is held to be
unenforceable or void for any reason, the remainder of the Agreement
shall be unaffected and shall remain in full force and effect in
accordance with its terms.
THUS DONE AND SIGNED, in multiple originals, in the city of Lafayette,
Lafayette Parish, Louisiana, on the day and in the month and year first above
written.
LHC GROUP, LLC ACADIA ST. ▇▇▇▇▇▇ HOME HEALTH, INC.
Manager Member
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------- -----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Manager ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CEO
LOUISIANA HEALTH CARE GROUP, LLC LHC GROUP, LLC
Member Guarantor
BY: LHC GROUP, LLC, Manager
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------ -------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Manager ▇▇▇▇▇ ▇. ▇▇▇▇▇, Manager
10.18 SEVERABILITY.
In the event any provision of this Agreement is held to be
unenforceable or void for any reason, the remainder of the Agreement
shall be unaffected and shall remain in full force and effect in
accordance with its terms.
THUS DONE AND SIGNED, in multiple originals, in the city of Lafayette,
Lafayette Parish, Louisiana, on the day and in the month and year first above
written.
LHC GROUP, LLC OPELOUSAS GENERAL HEALTH SYSTEM
Manager Member
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- -----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Manager ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
LOUISIANA HEALTH CARE GROUP, LLC LHC GROUP, LLC
Member Guarantor
BY: LHC GROUP, LLC, Manager
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------ -------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Manager ▇▇▇▇▇ ▇. ▇▇▇▇▇, Manager
10.18 SEVERABILITY.
In the event any provision of this Agreement is held to be
unenforceable or void for any reason, the remainder of the Agreement
shall be unaffected and shall remain in full force and effect in
accordance with its terms.
THUS DONE AND SIGNED, in multiple originals, in the city of Lafayette,
Lafayette Parish, Louisiana, on the day and in the month and year first above
written.
LHC GROUP, LLC ▇▇▇▇▇ ▇▇▇▇▇▇ MEMORIAL HOSPITAL
Manager Member
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- -----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Manager ▇▇▇▇▇ ▇▇▇▇▇▇, CEO
LOUISIANA HEALTH CARE GROUP, LLC LHC GROUP, LLC
Member Guarantor
BY: LHC GROUP, LLC, Manager
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------ -------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Manager ▇▇▇▇▇ ▇. ▇▇▇▇▇, Manager
MEMBERSHIP SCHEDULE
ACADIAN HOMECARE, L.L.C.
AS OF: APRIL 1, 2004
LOUISIANA HEALTH CARE GROUP, LLC 96 CLASS A UNITS
OPELOUSAS GENERAL HEALTH SYSTEM 1 CLASS B UNIT
▇▇▇▇▇ ▇▇▇▇▇▇ MEMORIAL HOSPITAL 1 CLASS C UNIT
ACADIA-ST. ▇▇▇▇▇▇ HOME HEALTH, INC. 1 CLASS D UNIT